Finding Common Ground, Despite Ideological Divides

Voters cast their ballots in at a polling station in York County, S.C.CreditTravis Dove for The New York Times

Just when it seems that there is absolutely nothing on which left and right can agree, along comes Delbert Hosemann, Mississippi’s Republican secretary of state, to tell Kris Kobach and his dangerous joke of an “election fraud” commission to “go jump in the Gulf of Mexico.”

Mr. Hosemann, who added helpfully that “Mississippi is a great state to launch from,” was responding to a request from the so-called Presidential Advisory Commission on Election Integrity for detailed information about the state’s voters.

He was not alone in his negative response.

A notably bipartisan — an unaccustomed phrase, that — group of elected officials in red and blue states is pushing back against Mr. Kobach, vice chairman of the commission (Vice President Mike Pence is the nominal head) on the grounds that the demand violates their constituents’ privacy and that how to conduct elections is the states’ business, not the federal government’s.

The resisters suffered a legal setback last week when Judge Colleen Kollar-Kotelly of the Federal District Court in Washington refused to issue an injunction against the data collection. Ultimately, Mr. Kobach, the Kansas secretary of state and the leading propagandist for the false claim that hordes of fraudulent voters are threatening American democracy (“we may never know” who actually won the popular vote last November, he declared on MSNBC last month), may get the information he wants. But Anthony Scaramucci could offer Mr. Kobach and the administration he serves some free advice: Watch out what you wish for.

No matter how it ultimately plays out, the episode has ignited something of a sagebrush rebellion uniting state officials across a deep ideological divide. It’s hard, in fact, to exaggerate how deep that divide was during the Obama years. It was only Republican states, nearly all of them, that pursued the Affordable Care Act in the federal courts. And only Republican states sued to block the Obama administration’s policy of shielding parents of young undocumented immigrants from deportation. That successful effort was led by Texas, which has long waged its own phony war against voter fraud and staunchly defends one of the country’s most restrictive voter-ID requirements.

But even Texas is not exactly jumping on Mr. Kobach’s bandwagon. The federal commission is seeking not only names, addresses and birth dates of some 150 million registered voters but also voting history, party registration, military and criminal records, and the last four digits of Social Security numbers. The Texas secretary of state, Rolando Pablos, announced that while the state would hand over the same public information that it would make available to anyone, it would “protect the private information of Texas citizens” from the federal request. And Gov. Greg Abbott tweeted, “Texas is keeping private your private information.”

Not everyone who is offended, or frightened, by the federal inquiry shares the same concerns. To some, the data demand looks suspiciously like a prelude to vote suppression. Eric Holder, an Obama administration attorney general, warned the N.A.A.C.P. national convention last week in Baltimore that the voting commission’s real purpose was to “come up with bogus reasons why further restrictions should be placed on the right to vote.” Conservatives worry about an overweening federal government that they see as intruding into the most delicate mechanism of state sovereignty.

Whatever brings them there, this disparate group is sitting at the same table, and they are sitting there under a banner of states’ rights. Can this be Donald Trump’s one positive accomplishment?

The president’s response to the “sanctuary cities” movement has blurred fewer ideological lines, but it has blurred some. Last week, the Massachusetts Supreme Judicial Court ruled that under the state Constitution, holding an immigrant for eventual delivery to federal authorities — a process known as an immigration detainer — amounts to an illegal arrest. The ruling prevents the state police and other state agencies from honoring a detainer request, in effect converting Massachusetts into a sanctuary state even though its Republican governor, Charlie Baker, had not taken that step.

Not surprisingly, California and its liberal cities have been leaders in the sanctuary movement. On Monday, the San Francisco police chief, William Scott, issued an order stating that his department “shall not assist” federal immigration officials except in emergencies. At the same time, the Trump administration’s threat to withdraw various federal grants from states and cities that refuse to cooperate with federal immigration policy is being challenged from the right. Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University and a prominent libertarian blogger, wrote last week that for the government unilaterally to change a grant program’s conditions after a state has accepted the initial terms would be unconstitutional.

“It will set a dangerous precedent,” he wrote on Volokh Conspiracy, and would give presidents “a massive club to coerce state and local governments on a wide range of issues.”

No other state high court has yet followed the Massachusetts court in providing a constitutional underpinning for the sanctuary movement. Every state constitution is different, and that’s the point. Under what scholars call judicial federalism, state courts can, and regularly do, invoke state constitutions to provide greater protection than the United States Constitution offers; the Massachusetts court interpreted the state Constitution to provide a right to same-sex marriage in 2003, 12 years before the United States Supreme Court reached the same conclusion.

“States’ rights” have of course played a tricky role in American history, and it’s hard for people of a certain age to hear the phrase without picturing a Southern governor standing in the schoolhouse door. But it’s 40 years since Justice William J. Brennan Jr. set out to infuse the term with new meaning by urging state courts to “step into the breach” left by a Supreme Court that much to his dismay was becoming steadily more conservative. His 1977 lecture published as an article in the Harvard Law Review under the title “State Constitutions and the Protection of Individual Rights” is one of the 10 most cited law review articles of all time. It is still studied and debated.

It’s too soon to say whether the sanctuary movement will open a new chapter in state constitutional law, but it is capturing public attention. In my own city of New Haven, a Guatemalan woman, ordered deported after 24 years in the country, took sanctuary in a church. Mayor Toni Harp, Gov. Dannel P. Malloy and the state’s two senators joined in public support for the woman, Nury Chavarria, a housekeeper who has four American-born children, including one with cerebral palsy. Her father and brother received asylum years ago, but for some reason, her asylum request was denied. She had reported regularly to immigration officials and received yearly extensions of the right to remain, but under Trump administration policy, when her annual appointment came around this summer, she was ordered immediately deported. Instead of going to the airport, she took her 9-year-old daughter with her to a church in the heavily Latino neighborhood of Fair Haven. Immigration officials declared her a fugitive, but federal policy prevented them from entering the Iglesia de Dios Pentecostal church.

Last Thursday, hundreds of people gathered outside the church for what was planned as a protest march against the administration’s immigration policies. But before the march got underway, the crowd received word that Ms. Chavarria’s lawyers from Yale Law School’s Worker and Immigrant Rights Advocacy Clinic had obtained a stay of deportation and that she was free to go home. The planned protest turned into a celebration.

Yes, Connecticut is a blue state, but 41.7 percent of Connecticut voters chose Donald Trump last November. This human drama played out in real time on network news and seemed to capture the attention of people who had paid little notice to the Trump-created immigration crisis. Is it just possible that the among the crowd cheering for a humane, if perhaps only temporary, solution for one family were one or two Trump voters?